POPE v. BOND

August 5, 1986

JAMES C. POPE, Plaintiff,
v.
LANGHORNE BOND, et al., Defendants

The opinion of the court was delivered by: FLANNERY

FLANNERY, U.S.D.J.

MEMORANDUM

This matter is before the court on both the motions of the Federal Aviation Administration and the individual defendants to dismiss the complaint pursuant to Rule 12(b) of the Federal Rules of Civil Procedure.

I. Background

Plaintiff is a former official in the Office of General Aviation of the Federal Aviation Administration ("FAA"). Plaintiff is suing the FAA and various present and former FAA officials in their individual and official capacities. During the 1970's, plaintiff served as Chief of the Industry/Government Liaison Division within the FAA headquarters Office of General Aviation. Plaintiff acted as a consumers' advocate and an ombudsman for members of the general aviation community, analyzing every major FAA research and development program affecting general aviation.

Plaintiff seeks compensatory and punitive damages against defendants for allegedly conspiring to silence plaintiff and ultimately to force his withdrawal from federal service. Specifically, plaintiff alleges that defendants retaliated against him for his public advocacy of an airborne collision system ("ACAS") manufactured by the Honeywell Corporation, known as the "AVOIDS" system. Plaintiff had contended that the AVOIDS system would provide mid-air collision protection for airplanes superior to and at a lower cost than a ground-based collision avoidance system being developed in-house by the FAA. Plaintiff contends that he was forced to accept a transfer to Seattle in 1979 and ultimately forced to withdraw from federal service after he began disclosing evidence of alleged FAA mismanagement and the danger of public safety created by FAA's refusal to support or approve the AVOIDS system. Plaintiff spoke out within FAA, to aviation trade journals and consumer groups, and eventually in 1980 to CBS's "60 Minutes". For this, plaintiff says FAA officials harassed him by, inter alia, subjecting him to excessive scrutiny and criticism, alternatively assigning him no work and then too much work, and imposing on him a series of minor disciplinary actions. Plaintiff asserts that from the emotional distress he was caused by defendants' conspiratorial harassment, he had to receive psychiatric treatment. On August 10, 1981, plaintiff went on sick leave from which he never returned to the FAA. On September 20, 1981, plaintiff was admitted to a psychiatric hospital.

On December 16, 1981, plaintiff received a notice of removal from the FAA, effective December 18, 1981. Plaintiff contested the removal in an appeal to the Merit Systems Protection Board ("MSPB") on January 2, 1982. A hearing on the merits was scheduled for August 18, 1982, but on August 16, 1982, the FAA approached plaintiff's counsel with a proposal to rescind the removal action. Plaintiff applied for and received approval for disability retirement and worker's compensation benefits on the grounds that his illness was job-related. The MSPB proceeding was then dismissed on October 13, 1982.

The original defendants moved to dismiss plaintiff's complaint. On June 20, 1985, this court dismissed some of plaintiff's claims including those related solely to the FAA's attempt to remove him in 1981. Pope v. Bond, 613 F. Supp. 708 (D.D.C. 1985) (hereinafter cited as " Pope v. Bond I "). The court found that plaintiff had failed to exhaust his administrative remedies regarding the removal, but that since there were no meaningful administrative remedies for the claims regarding harassment and retaliation, these claims were properly before the court.

On January 28, 1986, this court permitted plaintiff to file a second amended complaint. Pope v. Bond, C.A. 84-2922, Mem. & Order (D.D.C. Jan. 28, 1986) (hereinafter cited as Pope v. Bond II "). This amended complaint states in greater specificity the alleged conspiracy by defendants in violation of plaintiff's First and Fifth Amendment rights. Further, it adds claims under 42 U.S.C. §§ 1985(1) & (3) and under 5 U.S.C. § 552a (Privacy Act). Finally, the amended complaint added individual defendants. The original complaint named as individual defendants Langhorne Bond (FAA Administrator from 1977 to 1981), Roland Eckert (Special Assistant to FAA Administrator from January 1978 to 1980), Christian Walk (Director of FAA's Northwest Region from 1977 to 1980), Jonathan Howe (FAA Deputy Chief Counsel from 1978 to 1980), and Michael Forrester (Chief of Appraisal and Planning Staff in the FAA's Northwest Region from 1980 to 1982). The new complaint added individual defendant Clark Onstad (FAA General Counsel from 1977 until 1981) and three career FAA individual defendants who are still with the FAA: Charles Weithoner (FAA Associate Administrator for Administration), Donald Rock (FAA Director of Personnel and Training), and Lionel Driscoll (FAA Chief of Labor Relations Branch of the Personnel Management Operations Division). J. Lynn Helms (FAA Administrator from 1981 to 1984), an original defendant, was dismissed from the case because of a pending bankruptcy action in Connecticut but was brought back into the case after the lifting of the bankruptcy stay.

By April 15, 1986, defendant FAA, defendant Helms, defendants Bond, Eckert, Walk, Howe, and Forrester, and defendants Onstad, Weithoner, Rock and Driscoll separately moved to dismiss the claims brought against them. On May 15, 1986, plaintiff responded to defendants' motions in a single memorandum. On May 30, 1986, most defendant groups separately replied. Oral argument was heard June 6, 1986. Defendants Onstad, Weithoner, Rock, and Driscoll and plaintiffs sought leave to file supplemental memorandums.

II. Discussion

Defendants have suggested late in their pleadings that their motion might be dealt with as one for summary judgment rather than as a motion to dismiss. This court declines to do so. Discovery was stayed in this matter for the purpose of considering defendants' dismissal claims; changing the posture of the motion now without giving plaintiff a chance to conduct some discovery would be unfair and inappropriate.

On a motion to dismiss, the factual allegations of the complaint must be taken as true and any doubts concerning the sufficiency of the claim must be resolved in favor of the non-movant party. Sinclair v. Kleindienst, 229 U.S. App. D.C. 13, 711 F.2d 291, 293 (D.C. Cir. 1983). A motion to dismiss is viewed with disfavor and should not be granted unless it appears beyond a doubt that the plaintiff can provide no set of facts in support of his claim which would entitle him to relief. Doe v. U.S. Dep't of Justice, 243 U.S. App. D.C. 354, 753 F.2d 1092, 1102 (D.C. Cir. 1985).

In response to plaintiff's first amended complaint, defendants argued that the comprehensive scheme of administrative and judicial remedies available to plaintiff against FAA "counsel hesitation" against allowing a supplemental claim for damages against individual defendants. See Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971). In Pope v. Bond I, this court found that supplemental damages were appropriate, but agreed with defendants that Bush v. Lucas, 462 U.S. 367, 103 S. Ct. 2404, 76 L. Ed. 2d 648 (1983) precluded a Bivens supplemental remedy for the allegedly improper removal of plaintiff, since administrative remedies available in the case of removal had not been exhausted. Lesser allegedly improper personnel actions leading up to the removal ("prohibited personnel actions"), however, were found not to have a meaningful administrative remedy, and were therefore properly before this court.

Defendants raise three points in seeking reconsideration of this ruling. First, this court acknowledged in Pope v. Bond I that plaintiff could seek injunctive relief against the FAA for interference with his future employment rights. Plaintiff therefore has a meaningful remedy, precluding the need for a Bivens action against the individual defendants. Second, the MSPB had before it all the "lessor personnel actions" when plaintiff appealed the removal decision. Given this, and given that plaintiff did not file suit on any of these actions until years after the removal occurred, these actions should be treated as one bundle, not split into two. Third, this court's reliance in Pope v. Bond I on Borrell v. U.S. International Communications Agency, 221 U.S. App. D.C. 32, 682 F.2d 981 (D.C. Cir. 1982) is misplaced because Borrell did not involve damage claims (such as exist in the case at bar), but was limited to claims for injunctive relief against the government.

Despite these contentions, this court adheres to its prior ruling. The existence of an injunctive remedy against the FAA does not have any bearing on the need for a compensatory damages remedy against the individual defendants. Equitable relief addresses the wrong in an entirely different manner. Plaintiff seeks relief not just from future interference with his employment rights, but also for past violations of constitutional and civil rights. Bush does not foreclose a federal employee from pursuing a Bivens remedy whenever his injury arises from personnel actions. Bush involved a demotion for which Congress had constructed an elaborate remedial system to handle an employee's complaint. 462 U.S. at 388, 103 S. Ct. at 2416-17. The prohibited personnel practices here fit into no such scheme. Further, the fact that the MSPB had before it the prohibited personnel practices as well as the removal action itself does not create a single "bundle" of claims which are all now precluded by Bush. The MSPB appeal was dismissed when plaintiff's removal was rescinded by defendants. Plaintiff has had no meaningful opportunity for review of his constitutional claims regarding the alleged prohibited personnel practices. As noted in Pope v. Bond I, to the extent that plaintiff was required to allow the OSC an initial opportunity to examine his retaliation claims regarding transfer and harassment, it is apparent ultimately that OSC did investigate such complaints and find that they were unsubstantiated. Pope v. Bond I, at 712; Complaint, para. 192. Borrell and its progeny support the idea that a federal whistleblower must be provided with a meaningful remedy against the government when his rights are violated, whether it be damages or injunctive relief. Plaintiff is now properly before this court regarding these allegedly improper personnel practices.

B. Statute of Limitations

When no federal statute of limitations governs the period of repose for actions brought under the Civil Rights Acts or under the rationale of Bivens, a federal court must look to the limitations period applicable to the most nearly analogous state cause of action. Hobson v. Wilson, 237 U.S. App. D.C. 219, 737 F.2d 1, 32 (D.C. Cir. 1984), cert. denied, sub nom. Brennan v. Hobson, 470 U.S. 1084, 105 S. Ct. 1843, 85 L. Ed. 2d 142 (1985). For the same general reasons that § 1983 claims are best characterized as personal injury claims, Wilson v. Garcia, 471 U.S. 261, 105 S. Ct. 1938, 1947-48, 85 L. Ed. 2d 254 (1985), plaintiff's § 1985 and Bivens claims are also best characterized as personal injury claims. Hobson v. Brennan, 625 F. Supp. 459 (D.D.C. 1985) (Oberdorfer, J.). The problems that concerned Congress in passing § 1985 and those that gave rise to Bivens ' causes of action basically sound in tort. While some aspects of plaintiff's claims may appear more in the nature of defamation (which often carries a shorter time limitation under state law than other torts), for the same reasons of uniformity espoused in Wilson, this court utilizes a more simple, broad characterization of the claims. On this basis, the three-year residual limitation period provided in 4 D.C. Code Ann. § 12-301(8) controls this case inasmuch as the alleged conspiracy was centered in Washington, D.C.

The original complaint was filed on September 19, 1984. The law in this circuit is that the limitations period for bringing a "civil damages action for conspiracy runs separately from each overt act that is alleged to cause damage to the plaintiff." Lawrence v. Acree, 215 U.S. App. D.C. 16, 665 F.2d 1319, 1324 (D.C. Cir. 1981). All alleged acts committed on or after September 19, 1981 in furtherance of the alleged conspiracy state timely causes of action. The new claims filed by plaintiff through amendment of the complaint on January 28, 1986 fit within this tolling period because they relate back to the original complaint within the meaning of Federal Rules of Civil Procedure Rule 15(c). See Pope v. Bond II. The newly-added defendants are also subject to this tolling period because where a plaintiff brings an action against a government agency, Rule 15(c) specifically provides that the two notice requirements of the rule are satisfied with respect to the addition of agency defendants. Rule 15(c) states:

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The delivery or mailing of process to the United States Attorney . . . or an agency . . . who would have been a proper defendant if named, satisfies (the notice requirements) with respect to . . . any agency or ...

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